CR.RA/239/1991 of CHHATRASINH V. PARMAR Vs R.T.TRANSPORT on 30 December 1993

1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether their Lordships wish to see the fair copy of the judgment ? NO

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? NO

5. Whether it is to be circulated to the Criminal Courts ? NO

Mr. Giriraj N Desai, the learned Senior Counsel with Mr.Pranav Desai for the Petitioner.Mr. D.K Trivedi, learned PP for the Respondent-StateMr. B.T Rao, learned Advocate for Respondents inCriminal Revision Application No. 394 of 1980 only.In rest of the matters - respondents served.

���� CORAM : K.J VAIDYA, J.

������30-12-1993

ORAL JUDGEMENT

This group of 327 Criminal Revision Applications underSection 397 and 401 of the Criminal Procedure Code, 1973, atthe instance of the original Complainant - Mr. Chhatarsinh CParmar, Octroi Inspector, Vadodara Municipal Corporation,Vadodara is directed against the impugned judgment and orderdated 7-9-1990, dismissing the complaints under Section 468 (2)(a) of the Criminal Procedure Code, 1973 rendered seperately inas many criminal cases by the learned J.M.F.C (Muni.),Vadodara, wherein as a result the respondents transport ownerswho came to be prosecuted for the alleged contravention of theClause-3 of Standing Orders and Octroi Rules (as stated indetail in the complaints framed under Section 466 (1) (A) (f)and (a)(b) respectively read with Section 398, 468 of theBombay Municipal Corporations Act, 1949), were ordered to bereleased.

1.1 Now since the facts-situation and the law of limitationregarding taking cognizance of the offence under Section 468(2) (a), 470 and 473 of the Code arising in group of thesecases being common; except some variations in matters ofparticulars about the : (a) name and addresses of theconcerned accused, (b) type of imported goods in question, (c)date of importing the said goods, (d) issuance of notice to payoctroi duty, etc., at the joint request and with the consent ofthe learned advocates appearing for the respective parties, ithas been so decided to hear and dispose of all these CriminalRevision Applications together by this common judgment.

2. In substance, to briefly narrate the broad facts of allthese cases, according to Mr. Chattarsinh Parmar, OctroiInspector, the respondents herein are the transport owners,doing their respective businesses of transporting goods in Vadodara City. These respondents on given dates, as set-out inthe respective complaints, had imported certain goods in theirrespective vehicles within the limits of the Vadodara MunicipalCorporation, by making palpably false representation before theconcerned Octroi Clerk that the same were to be immediatelyexported from the City limits, and on the basis of the same,they obtained "transit passes" under Clause 3 of the StandingOrders (made by Baroda Municipal Corporation confirmed by theGovernment vide its Resolution dated 12-3-1970) framed u/s.466(1)(A)(f) of the Bombay Municipal Corporation Act, 1949 {forshort "B.M.C. Act"}. This Clause 3 of the Orders reads asunder :-

"(3) Procedure to be followed for exporting the good intended for immediate exportation :- Any person in charge of the goods indended for immediate exportation that are being imported into the Octroi limits of the Municipl Corporation will be bound to convey the said goods from the Import Naka to the Export Naka under the Municipal Supervision in accordance with the conditions and in the manner prescribed below :-

(i) The said goods will have to be exported within six hours from the time of import or such longer period as may be permitted in accordance with provisions contained herein after.

(ii) The said goods will have to be conveyed from the Import Naka to the Export Naka without any change of hands (due to sale or otherwise) or form, condition or appearance by any process of manufacture or otherwise and without their being used Consumed or sold within the octroi limits of the Municipal Corporation.

(iii) The person bringing the goods at the Import Naka shall give a declaration and an undertaking to the Import Naka Karkun in the form prescribed in Scheduled "A", pay the supervision fees prescribed in Schedule "B" and obtain from him a Transit Pass in the form prescribed in Schedule "C".

(iv) After obtaining the Transit Pass he shall proceed to the Export Naka with the said goods in the company of the Municipal Escort provided for this purpose by the routes which are specified in Schedule "G".

(v) After arriving at the concerned Export Naka, he shall after satisfying himself that the goods brought to the Export Naka are the same as those that are noticed in the Transit Pass and that they are brought in accordance with the Conditions prescribed, note the time of export and other necessary details and certify the export of goods on the Transit Pass. He shall thereafter be bound to remove the said goods outside the Octroi limits of the of the Municipal Corporation forthwith. The Transit Pass shall be retained by the Export Naka Karkun, and certificate of the export of material shall be given by the Export Naka Karkun to the Importer on the tripliciate Transit pass. "

Further according to the petitioner, since the respondentsherein in contravention of the aforesaid sub-clause (iii) ofClause-3 of the Orders did not transport the imported goods inquestion out of the Octroi limits, they were liable to pay theoctroi duty by virtue of Clause-8 of the Orders which reads asunder :- "(8) If the goods declared at the time of import to be

the goods intended for immediate exportation are not conveyed out of the Octroi limits of the Municipal Corporation within the prescribed time of six hours from the time of import or within the time extended by the Export Naka Karkun or if the said goods are not exported in the manner prescribed in the foregoing provisions, the said goods shall for all intends and purposes be deemed as goods imported for use, consumption or sale within the Octroi limits of the Corporation and

(i) Octroi due thereon shall be recovered from the person importing such goods and he shall pay the amount of octroi within 72 hours of the time and date of import.

(ii) If the Octroi is not paid as mentioned in standing order 8 (i) the same shall be recovered as if it is a property tax and recovered in the manner laid down in Chapter (viii) of the Schedule "A" of the Bombay Provincial Municipal Corporations Act, 1949.

(iii) The Deposit amount if paid as per foregoing provisions shall be treated as octroi and the additional octroi if any will be recovered as per standing order No. 8 (1) and (2) and the person from whom the deposit is received shall alone be deemed to be the importer."

This procedure was also not complied with and accordingly thegoods in question ultimately remained goods as having beenimported within the municipal limits of Vadodara without payingany octroi duty thereupon. Now this unpaid octroi duty ispayable on demand and the procedure prescribed for the same inClause-11 of Vadodara Municipal Corporation Octroi Rules, 1985,framed under Section 457 (7) read with Section 149 (1) of theB.M.C Act (for short "Octroi Rules") which reads as under :- "11. Octroi payable on demand :- (a) Octroi shall be payable on demand.

(b) Every person authorised by the Commissioner to demand octroi shall tender to every person on whom the demand is made a bill specifying the goods taxable, the amount claimed and the rate at which the tax is calculated.

Provided that when any consignment is received in part of parts at different times, the tax shall be levied only in respect of such portion as is actually imported from time to time and not on the whole of the consignment entered in the invoice.

Now, the penalty prescribed for breach of the Standing Orders, etc. etc. is provided in clause 11 of the said Standing Order which reads as under :-

11. Penalty :- Whoever commits a breach of any of the foregoing standing orders or whoever supplies any false information or produces false Transport Pass, Transit Pass or a Deposit Receipt shall be punishable with fine which may extend to Five Hundred Rupees and in the case of continuing breach the offender shall be punishable with fine which may extent to Twenty Rupees for every day during which the breach continues after Conviction for The aforesaid provision regarding penalty appears to beprimarily for the purposes of the departmental proceeedings forrecovery of octroi dues from the concerned defaulters.Accordingly, mere recovery of octroi by officers of theCorporation will not absolve concerned defaulters from thecriminal prosecution, where the penalty provided under section398 of the BMC Act reads as under :- Section 398 - Penalty for evasion of Octroi or toll.

Where any vehicle, animal, or goods imported into the limits of the City are liable to the payment of tool or octroi any person who, with the intention of defrauding the Corporation, causes or abets the introduction of or himself introduces or attempts to introduce within the limits of the City any such vehicle, animal or goods upon which payment of the toll or octroi due on such introduction has neither been made nor tendered, shall, on conviction, be punished with fine which may extend toten times the amount of such toll or octroi or to two hundred and fifty rupees, whichever may be greater.

Similarly, Section 399 provides for the general penalty which reads as under :- Section 399 - General Penalty.

Whoever contravenes any provision of this Act or rule, by-law, regulation, standing order, licence, permission or notice issued thereunder or fails to comply with any requisition lawfully made under any such provision shall, if no penalty is provided in any other provision of this Act for such contravention or failure, be punished, for each such offence, with fine which may extend to one hundred rupees and with further fine which may extend to twenty rupees for every day on which such contravention or failure continues after the first conviction.

On the authorities coming to know about the aforesaid defaultcommitted by the respondents, notices were issued against themunder Rule 16 of the Octroi Rules. The said Rule 16 reads asunder :- If th Commissioner or any other officer authorised in this behalf is of opinion or has reason to believe that it is necessary in the interest of Municipal Revenue to issue a requisition notice as per Form 'B' or in such a form as may be prescribed by the Municipal Commissioner, from time to time may issue the same asking any owner or importer of goods or any person connected with import of goods to return it duly filled in and signed by him within 15

days from the date of receipt of the same. The person, who is required by a written notice so to do, shall fill in correct details and submit a true account of the goods imported by him. The Commissioner or the officer authorised may require of the said person to produce before him any accounts or documents and to furnish any information relating to the import of goods or any other information in connection therewith as may be required together with the copies of abstract from such documents, etc. as appear to him to be necessary. The Octroi duty found due on the information received as per requisition notices or when such information is believed to be incorrect, or such other authentic information as may be obtained, shall immediately, be paid by the said person on demand. If the amount so demanded is not paid on demand, it shall be recovered as if it were tax by process of recovering as provided in Chaper VIII (rules of the Schedule appended to Bombay Provincial Municipal Corporation Act, LIX of 1949).

Explanation

Recovery of octroi by an octroi inspector or the oficer authorised by the Municipal Commissioner from a person who has evaded should not absolve the latter from criminal prosecution under section 398 of The Bombay Provincial Municipal Corporation Act, 1949.

Thereafter even despite issuance of notices, since therespondents failed to bring their Bills/Invoices, etc, etc., inquestion of the goods imported by them and also having furtherfailed to pay any octroi duty, the Octroi Inspector wasconstrained to file complaints against all the concernedrespondents on 12-2-1988 before the learned J.M.F.C [Muni.] atVadodara for the alleged contravention of the relevant StandingOrders 3, 8, 12 and Octroi Rule 12 punishable under Sections

3. On the respondents appearing before the trial Court,they submitted an Application Exh. 5, taking-up thepreliminary objection that since the alleged offences werepunishable merely with fine only, the complaints regarding thesame ought to have been filed within stipulated period of sixmonths as prescribed under Section 468 (2) (a) of the Code, andsince that was not done, there being an express bar to takecognizance of the offence, all these complaints deserve to bedismissed and accused be discharged accordingly.

3.1 The aforesaid preliminary objection was opposed by theOctroi Inspector by filing quite an exhaustive written reply atExh. 6, 9, etc., etc., on the various grounds as statedtherein :

3.2 The learned Magistrate thereafter after hearing boththe sides while upholding the preliminary objection on thegrounds briefly set-out as under, ruled "dismissal" of thecomplaints as time-barred and accordingly, ordered release ofthe respondent accused.

(i) That having regard to the facts and circumstances of the relevant octroi rules, since punishment provided is only of fine, the complaints were required to filed within the stipulated period of six months and since the same has not been done, the said complaints in question cannot be entertained.

(ii) That on going through the relevant provisions of the Act and the Standing Order No. 8 and the Octroi Rules, it is not necessary to obtain the sanction. Not only that but for filing the complaint it is not necessary to give notice under the aforesaid provisions. Under the circumstances, the time spent for issuing the notice and obtaining sanction cannot be excluded while computing the period of limitation and in that view of the matter, provision contained in Section 470 (3) is not applicable.

(iii) That taking into consideration the cases which have been referred to in the said chapter, the period of limitation cannot be extended by applying Section 473 of the Code.

(iv) That the complainant had not submitted any application giving explanation for condoning the delay and in that view of the matter also, the period of limitation cannot be extended, as asked for under

(v) That the decision of this Court rendered in case of

State of Gujarat v/s. Bhavani Industries, 24 (1983) 1, G.L.R p-664 was not applicable to the facts and circumstances of the present cases.

(vi) That the decision of Supreme Court in case of State of Punjab v/s. Swaransingh, 1981 SC p-1054, the same was applicable and in that view of the matter also, complaints deserves to be dismissed.

4. Mr. G.N Desai, the learned Senior Counsel appearing for the petitioner-Octroi Inspector, while challenging allthese orders dismissing the complaints, vehemently submittedthat the same were ex-facie illegal and perverse and hasresulted into a serious miscarriage of justice. Mr. Desaifurther submitted that none of the aforesaid grounds on whichthe complaints in question came to be dismissed has anyreasonable base which can sustain the close scrutiny at thehands of this Court. Making good this submission, Mr. Desaihas in the first instance, submitted that taking intoconsideration (i) the date of issuance of the demand notice foroctroi under Rule-12 and the date on which the complaintsactually came to be filed before the learned Magistrate, thesame were within the prescribed time-limit of six months. Mr.Desai further urged that in case if this Court was not inclinedto accept his above submission then in the alternative, in thesecond instance, the evasion of octroi duty must be held to bea 'continuing offence' and in that view of the matter, byvirtue of Section 472 of the Code, fresh period of limitationbegins to run at every moment of time during which the offencecontinues, and therefore, all the complaints were filed withinthe statutory time-bound !! and in the third instance,according to Mr. Desai, taking into consideration the factthat the octroi evasion is a white collar economic offence,which day-in and day-out is being committed, defrauding androbbing the Municipal Corporation of its precious publicrevenue, even if the complaints in question were filed beyondthe prescribed period of limitation, then even in the overallinterests of justice, the Court must extend the period oflimitation and thereby take cognizance of the alleged offence.On the basis of these submissions, it was finally urged by Mr.Desai that since the impugned judgments and orders on face ofit were illegal and perverse, the same at once deserve to bequashed and set-aside remanding all these cases to the trialCurt with a direction to restore the same on record and decidethe same on merits according to law.

Arguments

5. As against the above, Mr. B.T Rao, the learnedadvocate appearing for the respondent vehemently submitted thatthe reasons given by the learned Magistrate in his impugnedjudgments and orders while dismissing the complaints are just,legal and proper and therefore the same do not call for anyintereference at the hands of this Court. Mr. Rao furthersubmitted that the condonation of delay is a matter and thecircumstance which needs seperate special application to bemade to the trial Court and that only on making out the'sufficient grounds' for the same that the delay in questioncan be condoned. In the instant cases, according to Mr. Raosince the complainant was himself utterly careless and indolentin making the delay condonation application, there was noquestion of condoning the delay in question arises ! Mr. Raofurther submitted that the evasion of octroi duty cannot besaid to be 'a continuing offence' by any stretch ofimagination. In support of this contention, Mr. Rao hasrelied upon the decision of this Court rendred in case of M.SUpadhyay Upadhyay v. Mistri Jayantilal Hargovinddas, reportedin 1985 G.L.H 860. Further, according to Mr. Rao non-paymentof octroi duty cannot be labelled as such a serious economicoffence which can constrain any Court to call in aid Section473 of the Code, to extend the period of limitation, in orderto take cognizance of the alleged offence even if it is beyondthe prescribed period of limitation. Mr. Rao furthersubmitted that to condone delays in such type of cases wouldindirectly encourage the remissness, indolence on the part ofthe public servants in discharge of their duties andaccordingly therefore, to avoid bad precedent and even to setthem right and make them efficient - by way of an object lessonthe delay should not be condoned. Mr. Rao further submittedthat if this Court was not inclined to accept the decisionrendered in case of M.S Upadhyay v. Mistry JayantilalHargovinddas {Supra} then in that case, these matters bereferred to the larger bench to settle once and for all thecontroversy raging around this point of 'continuing offence' !Mr. Rao further submtited that if such matters are takenlightly, it may unnecessarily give an unjust handle to thepublic bodies like Vadodara Municipal Corporation, to filecomplaints leizurely at any point of time which mayunnecessarily result into unjust harrassment to the honestcitizen !! In this view of the matter, merely because it hasbeen alleged that the offence of evading the octroi duty is aneconomic offence that by itself is not sufficient ground totake a stern and stringent view of the matter to enhance theperiod of limitation by resorting to Section 473 of the Code.Mr. Rao further submitted that qua each respondents, CivilSuits infact have been filed for recovery of the Octroi dutyand in that view of the matter also, these criminalprosecutions, more particularly when they are belated one,should not be entertained. Mr. Rao on the basis of these submissions finally urged that since no case was made out tointerfere with the impugned judgments and orders, all theserevision applications deserve to be dismissed.

6. Now having heard the learned advocates appearing forthe respective parties quite at length, at the very outset, itmust be stated that the submissions made by Mr. Desai haveindeed considerable force, and accordingly therefore, the samemerits to be accepted straighway. In fact on taking a closelook at the chart (submitted by Mr. Desai) of 327 complaintsfiled against the respondents wherein case-wise details withregard to (i) date of offence, (ii) date of issuance of transitpass/es, (iii) issuance of notice under Rule-12 of the OctroiRules, (iv) date of complaints, etc., wherein things have beenspecifically particularized there is indeed no difficulty inholding that all the complaints were filed within theprescribed period of limitation. From the said chart, takinginto consideration the date on which the demand notices underRule-12 were issued and thereafter when despite the saidnotices since neither the certificate of export of the goodsnor the octroi duty came to be deposited with authoritiesduring the stipulated notice period that it can be said withcertainty that the offences of not depositing the transitpasses and the non-payment of octroi in question, obtained onthe basis of the false representation had taken place ! Tounderstand this, if we look at Sr. No. 1 of the Chart whichpertains to Criminal Case No. 916 of 1988 out of which thepresent Criminal Revision Application No. 151 of 1991 arises,the transit pass was issued on 1-5-1987 and ultimately pursuantto this, since the said Transit Pass were not deposited, oncoming to know about this fact of the case, the demand noticewas issued against the respondent on 11-11-1987. It was onlywhen accused did not comply with the said notice andaccordingly failed to pay the octroi duty due in question thatthe offence in respect of the same came into light without anydoubt whatsoever. Similarly, in other cases also, the date ofoffence would be not the date on which goods were imported onmaking false representation but it would be the date on whichactually the octroi was demanded by issuing the notices, andyet not deposited with !! Had indeed these goods would havebeen brought within the Municipal Corporation limits, withoutfalse representation of exporting it only, than perhaps thealleged offence of non-payment of octroi duty could certainlybe said to have been committed on the date of its import. Butthen precisely that is not the case here !! In this view ofthe matter, the learned Magistrate was not right when he took aview that since neither the notice under Rule-12 of the OctroiRules nor the sanction to prosecute was necessary, thecommencement of the period of limitation starts from the dateon which goods came to be imported. Now taking intoconsideration the pressure of work which surrounds the Octroi

Department of the Municipal Corporation viz., continuousissuance of innumberable receipts, preparing challans, transitpasses, forwarding the same to the superior officers and thenultimately sending it to the Central Office, the possibilitiesof such papers being either misplaced or lost in transit or forwhatever other reasons not reaching the decision takingauthority in time, cannot be ruled out. Under thecircumstances, to straighway rush to file complaints on mereapprehensions without exactly ascertaining the true facts inthe first place as to whether the transit passes were depositedor not and in the second place, if not deposited whether octroidue has been paid or not would indeed be quite rash, premature,harsh and unjust to the concerned transport-owners and the sameindeed does not befit the statutory corporation like theMunicipal Corporation !! Precisely, bearing in mind thisparticular aspect, by issuing notices demanding the octroi, thedecision taking authority can ascertain with certainty whetherthe Transit pass/es are deposited and the certificate of exportof goods obtained and if not, the octroi has been paid or not!! Because in case if the transit passes are deposited and incase if not deposited and the octroi is duly paid-up then onthe receipt of such notices, the respondents would surely replyaccordingly, proving their innocence by producing documentaryproof thereof from their record to avoid the prosecution ! Inthis view of the matter, issuance of notice is absolutelynecessary in first hand to determine whether in fact thealleged offences in respect of non-payment of octroi and notdepositing the transit passes have taken place or not. Nocomplaint in the Court of Law can ever be filed on the basis ofsome hunches, apprehensions and inferences without ascertainingthe true facts regarding the commission of the alleged offence! One must clearly understand the basic line of differencebetween some hunches, general apprehensions and the definiteallegations on the basis of which any complaint can lawfully befiled by statutory corporations in cases like the present one!!

6.1 Similarly, the learned Magistrate was not right insaying that there is no need to obtain the sanction for filingthe complaints. It is indeed a matter of common knowledge thatthe Municipal Corporation is a Statutory body, it has its ownrules of business. Thus, no person of his/her own sweet willcan ever initiate any proceedings, prosecution on behalf of theMunicipal Corporation against any citizens before any Courtunless of course, it is duly and properly sanctioned andaccordingly so authorised. In this view of the matter, evenafter the detection of the alleged default, before filing thecomplaints, it is incumbent upon the Octroi Inspector, underthe relevant provisions of the rules and law to obtain thenecessary sanction to prosecute and this process obviouslyconsumes quite some time !! If these two glaring aspects as highlighted abovein para 6 & 6.1 are just borne in mind then inview of section 473 of the Code, the facts and circumstances inwhich delay (if any and at all) took place stands sufficientlyself-explained to take the cognizance of the alleged offences !In this view of the matter, since the learned Magistrate wasex-facie wrong in appreciating the legal position, the impugnedorder dismissing the complaints on the said grounds falls flat.

7. Further for the sake of argument, even if it beaccepted that there was some delay in filing the complaints inrespect of the alleged offences, then even, there is no doubtwhatsoever that the evasion of octroi duty being a "continuingoffence", as provided in Section 472 of the Code, fresh periodof limitation would begin at every moment of the time duringwhich the offence continues. The offence of not paying theoctroi duty and not depositing the transit pass, in the opinionof this Court is a "continuing offence" because the date onwhich the goods were imported in fact from that date the octroibecomes due and from that date the Corporation is entitled torecover the interest on it and as long as the same goes onaccruing and ultimately unpaid-up, the offence continues. Atthis stage, the submission of Mr. Rao that in view of thedecision reported in case of M.S Upadhyay (supra), the offencein question cannot be said to be continuing offence has nosubstance. Here also it may be pointed out that there appearsto be some error on the part of Mr. Rao in reading the saidjudgment because the said judgment also does say in para-4, toquote, "..... Now, if non-payment of octroi was made anoffence, then certainly we can say that the offence continuestill the octroi is paid and that way the offence will be acontinuing offence, but Section 192-A (Gujarat Panchayats Act,1961) penalize the introduction of goods which are liable tothe payment of octroi within the octroi limits upon which thepayment of octroi due on such introduction has neither beenmade nor tendered. What is made punishable is not thenon-payment of octroi but introduction of goods or animals onwhich octroi duty though payable is not paid is an offence andthat offence is complete as soon as the goods or animals areintroduced within the octroi limits....." Reading this part ofjudgment with the relevant octroi rules clearly indicates thatwhat was alleged against the respondents-accused was nonpayment of octroi and not the import of goods. Further theword "Octroi" is defined in Section 2 (c) of the B.M.C Act, itmeans a Cess on the entry of goods into the limits of a cityfor consumption, use, or sale therein. The reason is goodswere not contraband goods which constituted some offence undersome Municipal Act or Rules. Everybody is free to import goodsprovided he is prepared to pay the Octroi duty. In this viewof the matter since the facts in case of the M.S Upadhyaya(Supra) are not similar, the same cannot be accepted. Apartthis, assuming even for the sake of argument that the decision rendered in case of M.S Upadhyay (Supra) was applicable withall force to the facts of the present group of matters, theneven, it is not necessary to refer to the point to the largerbench as requested by Mr. Rao, as keeping aside the questionwhether the alleged offences are continuing offence or not, allthese matters can be and accordingly has been alternativelyallowed on many other points discussed in this judgment.

8. Whether evasion of Octroi duty is an Economic Offence ?

It is of course true that the evasion of the octroi duty is notincluded within the embrace of the Economic Offences(In-applicability of the Limitation) Act, 1974, which came intoforce in April, 1974, wherein under Section 2, a schedule isprescribed wherein as many as 20 offences have been cataloguedas 'economic offences' and the evasion of the Octroi duty isnot so named as economic offence within the list of the sasideconomic offence. But then this list of 20 economic offencesappended to Section 2 of the said Act is merely illustrativeand cannot read as to take in its sweep those offences whichthough specifically not named as 'economic offence' yet innature and character of facts constituting the said offence, asan economic offence. But merely because somehow the evasion ofthe Octroi duty is left out from being mentioned in the saidschedule, that by itself never makes it lose its character asan 'economic offence' ! In fact, any offence which ultimatelyaffects the public-revenue to the prejudice of the publicexchequer, it is an 'economic offence' and once the same isviewed in the said light, the public interest and justice bothwarrant that offences involving the evasion of octroi dutyshould be governed by Section 473 of the Code to be extendedthe period of limitation in cases the complaints are filedbeyond the period of limitation !

9. Further still, it appears that while deciding thepresent group of Criminal Complaints, the learned Magistratewith due respect has clearly overlooked three commonsense,tale-telling, self-evident circumstances emerging from thefacts alleged in the complaint itself viz., firstly, that theevasion of octroi is a white collar chronic economic offence,as it defrauds and robs the Municipal Corporation of itsprecious public revenue which is utterly indispensable andnecessary in the first place to provide and maintain the civicamenities for the people, in the second place to run the hugeadministration as a whole of the Municipal Corporation and inthird place, no Municipality and Panchayat is free from thischronic economic disease of avoiding payment of octroi dutiesby some persons. Accordingly, the leaned Magsitrate ought tohave appreciated as to how indeed without sufficient funds,revenue of which octroi duty forms major chunk/portion and onthe basis of which the Municipal Corporation was expected torun its aforesaid show, that is to say if not closed,

efficiently ! For example, to illustrate, the MunicipalCorporation as a statutory public welfare body always bearsvery many heavy responsibility and duties towards the public inproviding essential community services like; (i) water-supply,(ii) Bus-services, (iii) fire-brigade, (iv) public roads andstreets, (v) lighting of roads and streets, (vi) public priviesand urinals, (vii) scavenging and cleaning, (viii) gardens &Zoo (ix) schools, (x) drains and drainage and disposal ofsewage, (xi) disposal of carcass and animals, (xii) cremationgrounds, (xiii) health, sanitation and hospitals, (xiv) Sportsstadium and town halls for cultural activities, and (xv)maintenance and regulation of Markets and slaughter houses,etc., etc. All these services and activities undertaken byMunicipal Corporations invariably calls for huge monetary fundsto start with and then recurring expenses to maintain them andfurther to top this, to continuously maintain the staff inthousands to look after the said essential services andactivities of Corporation and also to pay pension and servicebenefits when they retire from their services !! All theseneeds, means money, nothing else and less than money and itsuninterrupted regular inflow ! In fact the MunicipalCorporation by itself is as if a mini-State administration.Thus the evasion of the octroi duty by no standards can beviewed in isolation as a light, excusable default, howsoever asmaller be the amount of evasion there be ! Just like a smallhole in the bottom of ship cannot be ignored as it cancertainly bring about the disasterous end by sinking it iftaken lightly !! Similarly, the gravity and seriousness of thealleged offence on non-payment of octroi duty can not to beviewed and measured merely and only from the angle of amount ofoctroi duty involved and the penalty prescribed for it. Forexample, in the instant cases, for the alleged offences ofevasion of octroi duty what is provided is only some rupees offine, but then what is required to be further seen is that ifthe offence is of the type which is of the nature of dailyoccurrence by number of defaulters and unabatedly going on andon with ingenious schemes and designs to avoid payment ofoctroi dues if it is not strictly dealt with, what would be itsresultant ultimate impact upon the public exchequer of theCorporation is indeed not difficult to imagine ! In fact, as aresult of such wide spread and alarmingly increasing offences,if payment of Octroi is ultimately avoided then in that caseeither the quality and quantity of the public services will bedenied, dwindled or minimized to the greatest disadvantage ofcitizens and/or the Corporation may not have sufficient fundsto regularly pay its staff every month !! That in a givencase, Octroi amount may be quite small but at the sametime, itis a matter of every one's common knowledge that it is drip bydrip and rupee by rupee that the exchequer of the MunicipalCorporation is gradually filled up which ultimately ischannelized to supply money for the payment of salaries,

maintenance of the city, public welfare activities etc., etc.Can this aspect be ever ignored ? Does it even require in thefirst instance, to be pleaded by the Municipal Corporationbefaced with question of defending period of limitation infiling the Complaint (?) and in the second instance, whetherthe same is to be streamlined and highlighted by it whilepraying for endoning delay in filing the complaint ?? Ofcourse, "NO" as how indeed any Court can ever be so myopic invision, wooden, insensitive and lacking in commonsense to thebasic reasonableness and perceptibility of the facts situationto take the judicial notice of the same ? And in the thirdinstance, apart above, it is indeed indisputable that Vadodarais one of the biggest and busiest city not only of the State ofGujarat but also of the Country with hundreds and thousands ofvehicles day-in and day-out commuting across the city from alldirections, importing and exporting goods in thousands andmillions of tones, involving lacs and crores of rupees ofoctroi duty, through number of Toll Nakas of the City,constraining the Municipal Corporation to engage number ofOctroi Clerks attached to the work !! Not only that butnumbers of receipt-books, transit passes and some correspondingentries in registers are also required to be made and regularlymaintained ! This entire administrative process exerts andinvolves heavy pressure of work and thick and innumberablebunches of papers from so many Octroi Nakas has to pass throughvarious tables/stages the formidable bottle necks to verify,check and detect if something wrong was committed during theprocess. This obviously takes considerable time at every tableand sometimes in a given case it also gathers dust (!!) becausethe agency involved to do all these work is human agency quiteimpersonal and at a time quite slow also and accordingly, bythe time, it reaches ultimate decision taking authority, it wasbound to cross-across the stipulated period of limitation !!All these papers ultimately are forwarded to the MunicipalAuthorities sitting in the Central Office to carefully examineand detect the frauds if any of the non-payment of the octroiduty. This is indeed a very hard, difficult and quitecumbersome and time consuming process and thereby a stupendoustask wherein by the time any decision is taken by the decisiontaking authorities, it is bound to quite consume some time,sometimes even more time also ! In fact, the facts discussedand highlighted above are as glaring and clear as Sun in thesky and the light and heat it radiates and throws all-around usfor any one to feel its heat, light and presence thereby,unless of course one is unconscious, dead and gone !!Therefore, for any court to understand this, it needs neitherany application for the condotion of delay nor any evidence tobe lead in support for that purpose to explain and therebyultimately satisfy the concerned Court regarding the facts andcircumstances under which the delay in question came to takeplace. It is only when the Court unwarrantedly assumes a role

of innocent frog in the well, that it requires to be informed!! In this view of the matter, irrespective of the attendingfacts and circumstances of that particular case, it is indeeddown right - wrong first to insist for an application for delaycondonation setting out the facts and circumstances leading tothe alleged delay, if any. Evidence is indeed a need onlywhenever the Court is in dark and doubt to decide any point,but when the attending facts situation and circumstances aremore or less gallore, self-eloquent and self-evident of whichundoubtedly the judicial notice can be taken and must be taken,there is indeed no need for any such application for delaycondonation. Ordinarily, procedure is - a device a bridge, astep which is necessary where the gap is wide-enough whichwithout there being any bridge or the step in between, it isindeed too difficult to cross across and setp-over to have thecorrect assessment of the fact on the otherside !! But asagainst this, when in between the gap/delay in question,applying the test of the right minded person or the man ofordinary prudence, attending facts-situation and commonsence,is day light clear there is indeed no necessity upon somewritten mechnical application to plead and prove the same. Inthis view of the matter, it is simply strange as to how indeedthe learned Magistrate failed to appreciate this simple fact inthe first instance that the cases involving evasion of theoctroi duty and that too on such a large scale at a time bynumber of transport-owners can by any strecth of imagination besaid to be trivial, insignificant offences and in the secondinstance, looking to the colossal workload at every Octroi Nakaand Central Office, how it can be said that there was anyunreasonable delay in filing the complaint in case if at allthere was any delay in filing the same, which can be summarilydismissed on the alleged ground of limitation !! Nodoubt, itis quite true that taking into consideration merely myopic onesided view of the picture of the case viz., (i) the factsalleged in the complaint, (ii) the alleged contravention ofrelevant octroi rules and Standing Orders, (iii) the penaltyprescribed for the same being only fine, and (iv) the relevantprovision contained in Section 468 (2) (a) of the Code, to anycasual onlooker, the same may tempt to give benefit of bar oflimitation thereunder to the accused. But this disenchanted,unconcerned attitude is not the way in which degree and extentof its reach on the public interest and in fact, when any Courtis called upon to decide the question of limitation, it cannotafford to be unconcerned viewer firstly, ignoring the gravityand seriousness of offence and the degree and extent of itsreach on the public interest, in the instant case publicrevenue and secondly, looking at few words, ripples, bubbles onthe water (procedural) surface of Sea (Law) as it must alsoattempt to guage and find out the depth of water !!Accordingly, it cannot afford to be oblivious to the twoimportant aspects involved in the point viz., in the first instance, the gravity and seriousness of the offence, in theinstant cases the evasion of octroi duty which is practicallyirreversible, uncontrollable relapsing criminal tendency, achronic virus eating away the vitals of the public finance ofthe Municipality and it continues on large or small scale tillthe Octroi Rules continue !! If this die-hard, obnoxiouson-going habit of octroi-theft is taken casually, that onlymeans that the learned Magistrate has lost the judicialperceptibility and in the second instance, provision containedin Section 473 of the Code which calls upon the Court tocondone delay and extend the period of limitation to takecognizance of the offence in public interest !!

Conclusion

9. That takes us to the ground No. 4 on which thecomplainant came to be dismissed. On going through the saidjudgment of State of Gujarat v. Bhavani Industries (supra),the learned Magistrate has committed patent and obvious errorin holding that the same was not applicable to the facts andcircumstances of the present cases.

10. Turning to yet another ground viz., the Supreme Court decision rendered in case of State of Punjab v. Swaransingh(Supra) on the basis of which, the learned Magistrate dismissedthe complaints, it may be stated that the same having nobearing on the facts of the present case, is of no assistanceto the respondents-accused. In fact there cannot be anydispute as regards ratio laid down in the said decision, in thefacts and circumstances of that case. Unfortunately, thelearned Magistrate was unable to distinguish the differencebetween the two sets of facts-situation of the alleged offencesin cases at hand and one in case before the Supreme Court. Inthat case offence was under Section 406 only and not one thatof not paying the octroi dues which is a serious recurringeconomic offence for which tdhe Legislature has taken care byproviding Section 472, 473 of the Code where it is stated thatin case of the 'continuing offence' a fresh period oflimitation shall begin to run at every moment of the timeduring which offence continues and that in a given case, in theinterest of justice can be extended ! Not only that but thefacts and circumstances of the S.C were too simple whereSection 473 of the Code can have hardly any say to extend theperiod of limitation unlike the present group of cases whereSection 473 of Code is immediately applicable !

11. Apart aforesaid discussion, on carefully examining thecomplaints in all these matters, it is indeed significant tonote that they appear to have been filed only for the allegeddefault of not returning the Transit pass/es as warranted byClause 3 of the Standing Order and in turn accordingly also fornot paying up the octroi dues under the relevant standing orders and the octroi rules which are punishable under theVadodara Muncipal Corporation Act, blissfully ignoringaltogether that the very same facts and circumstances allegedin all these complaints also simultaneously prima facieconstitutes offence punishable under Sections 175, 176, 177,199, 200, 403, 406, 415 and 420 of the Indian Penal Code.

11.1 Section 175 of the I. P Code pertains to intentionallyomitting to produce a document to a public servant by a personlegally bound to produce or deliver such document, for whichthe sentence provided is simple imprisonment of one month orfine of Rs. 500/- or both. Section 176 pertains tointentionally omitting to give notice or information to apublic servant by a person legally bound to give such notice orinformation, for which the punishment provided is simpleimprisonment for one month or fine of Rs. 500/- or both.Section 177 pertains to knowingly furnishing false informationto a public servant, for which the punishment provided isimprisonment for a period of six months or fine of Rs. 1,000/=or both. Section 199 pertains to false statement made in anydeclaration which is by law receivable as evidence and forwhich punishment provided is imprisonment for seven years andfine. Section 403 pertains to dishonest misappropriation ofthe property, for which the punishment provided in Sec. 406 isimprisonment for a term which may extend to two years or withfine, or with both. Section 406 pertains to punishment forcriminal breach of trust, for which the punishment provided isimprisonment for a term which may extend to three years, orwith fine, or with both. Section 415 and 420 pertains tocheating and thereby dishonestly inducing delivery of property,or making alteration or destruction of a valuable security andfor which sentence provided is imprisonment for seven years andfine. Thus taking into consideration the aforesaid offencesunder the Indian Penal Code and the punishment provided for thesame, the period of limitation would not be restricted to sixmonths only as provided under Section 468 (2) (a) of the Codebut the same would fall within the ambit of Section 468 (2) (b)and 468 (2) (c) of the Code having more period of limitation.This is quite clear moment we look at the Section 468, whichreads as under :- Section 468 - Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be -

(a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purpose of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

When all these cases are examined from this stand point thesame being offenes under the I.P Code as well, there is noquestion of limitation that arises in the present cases, as allcases are filed within the prescribed statutory period oflimitation. It is unfortunate that the complainant haslost-sight of this aspect of the cases where therespondent-accused are liable to be prima facie tried for thealleged offences under the I.P. Code. The learned Magistratein this view of the matter is directed to suitably add thealleged offences under the I.P. Code after hearing both thesides.

11.2 Apart this case, in other such cases also, even if thecomplainant for whatever reason has failed to pray the Court topunish the accused for the alleged offences under the relevantsections of IPC, nonetheless it shall be the duty of theconcerned learned Magistrate of his own to see the relevantoffences under the IPC are added and accordingly the accused ispunished if the offence is brought home.

12. Now turning to the next argument of Mr. Rao that somesuits are filed against the present respondents for therecovery of the octroi duty, regarding which the complaintshave been filed and are pointed out to be time-barred, that byitself is hardly a ground to discard the criminal prosecutionas criminal complaints stand entirely on different and its ownfootings on the basis of contravention of rules constitutingCriminal offences as stated above. When that is permissible,the complaint can be filed and merley because the said suit isfiled that cannot debar the complaintant to file the criminalcomplaints against the respondent-accused before the learned Magistrate.

12.1 In view of the aforesaid discussion, in the firstplace, it is indeed very clear that all complaints are filedwithin the stipulated period of limitation of six months.Apart this, remotely even, in case if this Court was to holdthat there was some delay, in the filing the complaints theneven, taking into consideration the robust common sense view ofthe entire circumstances attending all these cases, it must besaid with more than certainty that the alleged offences being'Economic and continuing offences' also, in very nature of thefacts and circumstances of the case, they indeed quitesatisfactorily explain the delay in question as warranted underSections 472 and 473 of the Code, to deserve the cognizance ofthe same being taken. Still further, apart taking intoconsideration the facts alleged in the complaint alsoconstitute offences under the I.P Code.

12.2 In this view of the matter, since the grievance voicedby the learned Advocate Mr. Desai is found to be absolutelyjustified, it is required to be held that the impugnedjudgments and orders passed by the learned Magistratedischarging the accused on face of it being illegal and unjust,the same deserves to be quashed and set-aside and accordingly,these cases are remanded to the trial Court to be disposed offon merit, according to law, more particularly, in the light ofthe observations made in above para 11.1 of this judgment.

13. In the result, this group of 327 criminal revisionapplication is allowed. In all these cases, the impugnedjudgment and orders discharging the accused, passed by thelearned JMFC (Muni.), Vadodara are hereby quashed andset-aside, and that the cases under these revision applicationsare ordered to be remanded with a direction to restore allcomplaints on record and proceed with the case and decide thesame on merits, according to law; especially in the light ofdecision of this Court rendered in the case of State of Gujaratversus Dr. C.K Patel, reported in (1991) 2, GLH p-354. It isfurther directed that the Complainant or his successor shallremaim present on 28-2-1994 before the learned JMFC, Baroda andtake appropriate date for proceeding the matters and willco-operate with the learned JMFC in disposing of the same asexpeditiously as possible. After the date is fixed, the noticeto the respondents shall be served through the Complainant withthe help of Police authorities of the concerned areas. Bychance, if that fails, it is hardly required to be told that itwill be open to the Court to get it served in any other mannerpermitted under the Criminal Procedure Code.

14. The Registrar is directed to forward a copy of thisjudgment to the Secretary, Legal Department, Gandhinagar with a request to immediately forward the same to the concernedSecretary incharge of the Municipality with a request tocirculate the same to the (i) Municipal Commissioners (LegalSection) of the Municipal Corporations of the State, and (ii)Chief Officers of the Municipalities of the State, forinformation.

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Prakash*